United States v. 2001 Volkswagen Beetle

August 5, 2008

UNITED STATES OF AMERICA, PLAINTIFF,v.2001 VOLKSWAGEN BEETLE, VIN: 3VWCK21C91M427412, CALIFORNIA LICENSE PLATE NUMBER: 5SBH743, AND APPROXIMATELY $9,323.36 IN U.S. U.S. CURRENCY SEIZED FROM BANK OF AMERICA SAVINGS ACCOUNT NUMBER XXXXXX5024, DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

On June 16, 2007, Plaintiff United States of America ("Government") filed a motion to strike claimant Carlos Moreno Pacheco's Answer to Plaintiff's Verified Complaint for forfeiture in rem and an ex parte application for default judgment against the interests of Carlos Moreno Pacheco and Gustavo Solis in a 2001 Volkswagen Beetle, VIN: 3VWCK21C91M427412, California License Plate Number: 5SBH743 ("defendant vehicle") and approximately $9,323.36 in U.S. Currency seized from Bank of America Savings Account Number XXXXXX5024 ("defendant funds"). A hearing on the Plaintiff's motion is scheduled for August 8, 2008, at 9:30 a.m. before the undersigned. As explained more fully below, the court ORDERS the motion taken off calendar pending submission of additional briefing by the Government regarding the provision of notice to potential claimants.

On February 23, 2007, the Government filed its initial complaint for forfeiture in rem to claim: (1) that the defendant vehicle is subject to forfeiture to the Government under 21 U.S.C. § 881(a)(4) on the grounds that the defendant vehicle constitutes a conveyance used or intended to be used to transport, or to facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance; and (2) that the defendant funds are subject to forfeiture to the Government under 21 U.S.C. § 881(a)(6) in that the defendant funds constitute moneys or other things of value furnished or intended to be furnished in exchange for a controlled substance, all proceeds traceable to such an exchange and/or were used or intended to be used to facilitate one or more violations of 21 U.S.C. § 841 et seq. (Doc. 1).

On February 27, 2007, the court issued a warrant for arrest in rem ("arrest warrant") for the defendant vehicle and defendant funds. (Doc. 5). On March 6, 2007, the court issued an order for publication of the action and arrest of the defendant vehicle and defendant funds. (Doc. 6).

On or about March 5, 2007, copies of the verified complaint, arrest warrant, publication order and other papers related to this action were served on Carlos Moreno Pacheco by certified U.S. Mail through his attorney, Preciliano Martinez. Mr. Martinez's office received the documents on March 6, 2007. (Declaration of Stephanie Hamilton Borchers ("Borchers Decl.") filed concurrently with the instant motion, at ¶ 3 and Exhibit A). The Government attempted to serve Mr. Pacheco personally in March 2007, but he reportedly had moved from his last known address. (Doc. 32).

On or about March 20, 2007, copies of the verified complaint and above-referenced documents, along with a letter dated March 14, 2008, were served on Jose Garcia, stepson of Gustavo Solis, a person of suitable age and discretion then residing in Gustavo Solis' usual place of abode. (Doc. 29).

On June 4, 2007, the Government and counsel for claimant Carlos Moreno Pacheco submitted a stipulation for the filing of a First Amended Complaint by the Government. (Doc. 11). The stipulation indicated that the Vehicle Identification Number for the 2001 Volkswagen Beetle in the initial complaint contained a typographical error.

On June 18, 2007, the Government filed an Amended Verified Complaint. (Doc. 15). Thereafter, an amended arrest warrant and an amended publication order were issued. (Docs. 18 and 21). Copies of the amended complaint, amended arrest warrant, amended publication order and other papers related to this action were served on Carlos Moreno Pacheco by certified U.S. Mail through his attorney, Preciliano Martinez. (Borchers Decl., at ¶ 6 and Exhibit C).

On April 9, 2008, the Government requested entry of default as to the interests of Gustavo Solis, based, in part, on service of the original complaint. (Doc. 36). That same date, the Clerk of the Court entered default as to Gustavo Solis. (Doc. 37). There is no indication in the moving papers or in the record before the court that Gustavo Solis was served with the amended complaint that correctly identified the defendant vehicle. Ordinarily, an amended complaint supercedes the original, and renders it of no legal effect. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) ("amended complaint supersedes the original, the latter being treated thereafter as non-existent"). Accordingly, the Government is requested to demonstrate whether service was adequate as to Gustavo Solis and why default judgment is appropriate as to his interests in the defendant vehicle and the defendant funds.

As the court is seeking additional information regarding the application for default judgment, IT IS HEREBY ORDERED that:

1. The hearing on Plaintiff's Motion to Strike Claimant Carlos Moreno Pacheco's Answer to Plaintiff's Verified Complaint For Forfeiture In Rem and Ex Parte Application for Default Judgment currently scheduled for August 8, 2008, at 9:30 a.m. before the undersigned is taken OFF CALENDAR and CONTINUED;

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